Facts
The [A. AG] (developer) is the owner of a property located in the residential zone A in the municipality of Celerina/Schlarigna (Graubünden), on which three apartment buildings with a total of 22 residential units are situated. On 22 June 2022, it submitted a building application to convert the existing buildings, redesign the façades and reduce the number of residential units from 22 to 14. The new residential units were to be used as second homes. In addition, the construction of a swimming pool was planned.
On 27 June 2022, the municipal council of Celerina established a planning zone for the entire municipal area in order to examine possible measures to prevent undesirable developments related to pre-existing residential units and second homes. This planning zone was partially lifted on 19 January 2023, as the municipal council concluded that no measures under Art. 12 SHA were required. Instead, on 12 December 2022, the municipality adopted a housing promotion law (WBFG) providing measures to promote housing for the local population.
The developer’s building application was publicly displayed from 11 to 30 March 2023. The Helvetia Nostra Foundation (appellant) and other persons filed objections. The municipal council of Celerina dismissed the objections with a building and objection decision dated 10 July 2023 and granted the building permit subject to conditions. The Helvetia Nostra Foundation appealed this decision to the Administrative Court of the Canton of Graubünden, which dismissed the appeal with a judgment dated 21 May 2024. The Helvetia Nostra Foundation then filed an appeal in public law matters with the Federal Supreme Court.
Considerations
The Federal Supreme Court first examines the admissibility of the appeal. The appellant is entitled to appeal as an organisation concerned with nature and heritage conservation under Art. 12 para. 1 lit. b NCHA, since the restriction of second-home construction is a federal task. It participated in the municipal objection and the preceding legal remedy proceedings and is therefore entitled to appeal against the preceding judgment under Art. 89 para. 2 lit. d FSCA. The other requirements for a decision on the merits are also met, so the Court will proceed with the appeal.
In the matter, the appellant claims that the building permit violates Art. 75b Cst. and the implementing provisions of the Second Homes Act (SHA). It particularly argues that the lower court wrongly rejected the evidence requests regarding the termination of tenancy agreements of local tenants without violating the right to be heard. The Federal Supreme Court confirms that the lower court was correct to consider the evidence requests unnecessary, as the housing shortage in the municipality of Celerina is generally known and the termination of tenancy agreements does not affect compliance with the Second Homes Act.
The appellant further submits that the residential units in question are not pre-existing within the meaning of Art. 10 SHA, as they were to be demolished and replaced by 14 new second homes. The Federal Supreme Court, however, notes that the lower court correctly and non-arbitrarily determined that this constitutes a conversion in which the building envelope and load-bearing structure are preserved. Therefore, the residential units are…